No, held the Employment Court in Kaikorai Service Centre Limited v First Union Incorporated [2018] NZEmpC 160. The duty of good faith is not one and the same as courteous behaviour.
The Employment Court decided that while there would naturally be situations where behaviour simply crosses the line and becomes a breach of good faith, in this case the huge blow-up cartoon rats with the slogan ‘Pak’nSlave’ adorning its neck and the banner reading “Don’t be a Rat, Mr Dobson” were all simply a standard part of the union’s negotiation tactics.
The union was displeased with the lack of inclusion for a set amount of wages in the draft collective agreement. When discussions stalled as the bargaining turned sour, the union decided to catch the public eye and garner support with the aforementioned rat, slogan and banner.
Kaikorai, the employer, immediately took exception to this protest, claiming that it was a breach of good faith as it placed undue public pressure on Mr Dobson, who wasn’t even the employer but rather a director and shareholder. Mr Dobson did not provide evidence on how he felt, but Mr McPhail, the employment relations advocate stated that he felt it to be ‘insulting’ due to the negative reputation rats carry as ‘vermin’.
The union pointed out that this type of behaviour is often observed as a form of industrial protest. Its intention was not to shame Mr Dobson, and in no way was it meant to be defamatory. It argued that countries such as the US and Canada have accepted similar actions as lawful forms of protest.
The Authority considered three elements required by good faith under s 4:
- To not act in a misleading or deceptive way, directly or indirectly
- To be responsive and communicative
- To give affected employees sufficient information to be able to understand proposals and give them the opportunity to comment
None of these elements demand for communication between a union and employer to be polite, or for free speech to be constrained. It was held that the ‘rat protest’ did not impede the process of bargaining in any way.
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